Plaintiffs’ Motion Challenging the Sufficiency of Defendant David Castle's Responses to the Plaintiffs’ Requests for Admission of Fact

(Hearing Requested)

Megan Cotton, individually, and as Personal Representative for the Estate of Lawrence Cotton, Michael Cotton, and Elizabeth Lessig, and hereby move that this Honorable Court order Defendant David Castle to file a more accurate and complete response to the Plaintiffs’ Request for Admissions of Fact, or in the alternative, order that the Requests for Admissions of Fact are deemed admitted and in support thereof states as follows:

Introduction

On April 19, 2011, in an effort to narrow the issues in dispute before the Court, the Plaintiffs sent Dr. Castle Requests for Admission of Facts. On or about May 17, 2011, Dr. Castle submitted his responses to those requests. Many of the responses are inadequate because Dr. Castle failed to admit or deny the request, made baseless objections, claimed that it was impossible to admit or deny the request while simultaneously providing a partial answer that did not fairly meet the substance of the request, and otherwise provided answers that were non-responsive. Because Dr. Castle’s responses are insufficient, inadequate, confusing, and fail to comply with Maryland Rule 2-424, the Plaintiffs are entitled to a more accurate and complete response to the requests listed below. In the alternative, the Plaintiffs request that this Honorable Court order that each matter of which Plaintiff has made a Request for Admission is deemed admitted.

The Requests that are the Subject of this Motion

Request No. 1: Does Dr. Castle admit that Michael Cotton is the adopted son of Lawrence Cotton?

Response No. 1: Defendant admits only that he has no evidence to dispute that Michael Cotton is the adopted son of Lawrence Cotton.

Md. Rule 2-434 permits only three possible responses to this request: 1) admit, 2) deny and 3) Defendant is unable to admit or deny. Dr. Castle’s response that he has no evidence to dispute that Michael Cotton is Lawrence Cotton’s adopted son tells the Court that Dr. Castle has no good faith basis to deny the request. Coupled with Michael Cotton’s deposition testimony that Lawrence Cotton was his adoptive father, it is apparent that the only good faith response available to Dr. Castle is “admit.”

Under the wrongful death statute the Plaintiff must establish that he falls within one of the categories of beneficiaries permitted to bring a wrongful death action. A son of the decedent qualifies as a beneficiary. The Plaintiff should not be required to prove this element of his cause of action when there is no real dispute regarding his ability to bring a wrongful death action. Dr. Castle did not admit or deny the request, nor did he claim he was unable to admit or deny – he simply ducked the question with a non-responsive answer. Plaintiff requests that this Court deem the request admitted.

Response No. 2: Defendant admits only that he has no evidence to dispute that Elizabeth Lessig is the adopted daughter of Lawrence Cotton.

Basis for Motion to Compel:

Md. Rule 2-434 permits only three possible responses to this request: 1) admit, 2) deny and 3) Defendant is unable to admit or deny. Dr. Castle’s response that he has no evidence to dispute that Elizabeth Lessig Cotton is Lawrence Cotton’s adopted son tells the Court that Dr. Castle has no good faith basis to deny the request. Coupled with Elizabeth Lessig’s deposition testimony that Lawrence Cotton was her adoptive father, it is apparent that the only good faith response available to Dr. Castle is “admit.”

Under the wrongful death statute the Plaintiff must establish that she falls within one of the categories of beneficiaries. A daughter of a decedent qualifies as a beneficiary. The Plaintiff should not be required to prove this element of her cause of action when there is no real dispute regarding her ability to bring a wrongful death action in this case. Dr. Castle did not admit or deny the request, nor did he claim he was unable to admit or deny – he simply ducked the question with a non-responsive answer. Plaintiff is asking this Court to deem the request admitted.

Response No. 3: Defendant admits only that he has no evidence to dispute that Megan Cotton was the wife of Lawrence Cotton.

Basis for Motion to Compel:

Md. Rule 2-434 permits only three possible responses to this request: 1) admit, 2) deny, and 3) Defendant is unable to admit or deny. Dr. Castle’s response that he has no evidence to dispute that Megan Cotton was Lawrence Cotton’s wife tells the Court that Dr. Castle has no good faith basis to deny the request. Mrs. Cotton was at the hospital with her husband, had daily contact with Dr. Castle, and accompanied her husband to many doctor visits with Dr. Castle. Lawrence Cotton’s death certificate that Dr. Castle signed clearly indicates that Megan Cotton was Mr. Cotton’s wife. (See Exhibit 1.) Additionally, Megan Cotton testified at her deposition that she was the wife of the late Lawrence Cotton. It is apparent that the only good faith response available to Dr. Castle is “admit.”

Under the wrongful death statute the Plaintiff must establish that she falls within one of the categories of beneficiaries. The wife of a decedent qualifies as a beneficiary. The Plaintiff should not be required to prove this element of her cause of action when there is no real dispute regarding her ability to bring a wrongful death action in this case. Dr. Castle did not admit or deny the request, nor did he claim he was unable to admit or deny – he simply ducked the question with a non-responsive answer. Plaintiff is asking this court to determine that the request is deemed admitted.

Request No. 4:Does Dr. Castle admit that he was the physician who was primarily responsible for the medical care and treatment of Lawrence Cotton while Lawrence Cotton was an inpatient at Montgomery General Hospital?

Response No. 4: Objection. The request is ambiguous as the phrase “primarily responsible” is subject to multiple interpretations; therefore this request is ambiguous and cannot be admitted or denied as phrased. Moreover, this Request involves an ultimate issue of fact in dispute. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

Dr. Castle objects to this question claiming that it calls for a conclusion on an ultimate issue of fact. This is simply wrong. The ultimate issue of fact is whether Dr. Castle breached the applicable standard of care which was a proximate cause of Lawrence Cotton’s death. The fact that Dr. Castle was Lawrence Cotton’s primary treating physician while he was a patient at Montgomery General Hospital was admitted by Dr. Castle at his deposition. (See Exhibit 2 Deposition of Dr. Castle attached hereto.) His own lawyer posed the following question at his deposition:

Page 156.

Q Well, while you were his treating physician3 at Montgomery General Hospital up until the time of4 his demise did you formulate any opinion that he was5 bleeding during the time that he was under your care6 and treatment?7 A I didn't feel he was bleeding. He was not8 bleeding.

For Dr. Castle to now claim that he is confused whether he was in fact Mr. Cotton’s primary care physician while a patient at Montgomery General Hospital and that therefore the request cannot be admitted or denied as phrased is absurd. Dr. Castle cannot in one breath claim that the request cannot be admitted or denied as phrased and in the very next sentence deny the request. Either he admits or denies the request. He once again ducked the question. Plaintiffs move that this court deem the request is admitted.

Request No. 6: Does Dr. Castle admit that the laboratory results from the blood tests done on Lawrence Cotton while he was a patient at Montgomery General Hospital are accurate.

Response No. 6: Objection. The request is ambiguous as the term “accurate” is subject to multiple interpretations, the “laboratory results” are not defined or specified, and the request makes no reference to any specific time; therefore this request is ambiguous and cannot be admitted or denied as phrased. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

Once again Dr. Castle has failed to simply admit or deny the request. He is not permitted to give a half-answer or a qualified response. He must either admit or deny that Mr. Cotton’s blood tests are accurate. He claims that he does not comprehend what the word “accurate” means, and cannot ascertain what “lab tests” are being referred to in the request. Dr. Castle had no difficulty answering similar questions during his deposition. He did not raise any objections to questions regarding the accuracy of the blood tests during his deposition. Only now, when the plaintiff desires a definitive response to the accuracy of the blood test does Dr. Castle become confused and unable to respond with a simple admission or denial. To be clear, Dr. Castle testified under oath that:

Page 30Q Upon going through the medical chart for5 the care that Mr. Cotton received at Montgomery General6 Hospital -- and when I talk about the care he received7 at Montgomery General Hospital we are all talking8 about the care from May 15th to May 17th, 2007 unless9 I direct otherwise.10 When you reviewed the chart from the11 hospital for the care he received is there any12 inaccuracies that you found in any of the medical13 records?14 MR. DAVIS: I will just object to the15 form of the question as to the term inaccuracies.16 But you may go ahead and answer.17 THE WITNESS: Well, we found that the18 orders written by the nurses were not easily19 identified as to the time and it became that that was20 the main thing. Otherwise they were accurate, but we21 have trouble putting together the timeline on what the22 nurses wrote on the orders.

Emphasis added.

Dr. Castle admitted under oath that other than some discrepancies in the times for some written orders by nurses, that the entire medical chart for Lawrence Cotton was accurate. There is no valid reason why he cannot admit that the lab results for the blood test are now also accurate. Plaintiffs move that this request be deemed admitted.

Request No. 12: Does Dr. Castle admit that Megan Cotton requested that Lawrence Cotton be transferred to John Hopkins Hospital for medical care and treatment.

Response No. 12: Objection. This request is ambiguous as it fails to identify a time or date of Mrs. Cotton’s request nor does the request identify to whom the request for transfer was made. Defendant is unable to admit or deny the request, as he has no recollection that Megan Cotton made a request to him that Lawrence Cotton be transferred to Johns Hopkins for medical care.

Basis for Motion to Compel:

Dr. Castle’s sole reason not to answer this request is based upon his claim that he has no recollection of any conversation with Mrs. Cotton regarding a transfer. The request did not ask Dr. Castle to admit that Mrs. Cotton asked him “personally” to transfer Lawrence Cotton to John Hopkins Hospital; simply that such a request was made. The medical records that Dr. Castle has already admitted were accurate state that the family requested that Mr. Cotton be transferred to John Hopkins Hospital. This fact is not in dispute and is evidenced by the medical chart itself. There is no bona fide reason for Dr. Castle not to admit this fact. Dr. Castle admitted that the request was noted by the nurses in the medical chart.

Page 121.

Q Doctor, at any time during your treatment12 of Mr. Cotton did he or his wife request that he be13 transferred to Johns Hopkins Hospital?14 A I don't recall the conversation, but it was15 mentioned by the nurses.16 I can refer to the record.17 Q You can refer to your notes. Sure, Doctor.18 A On the 17th there was a note in the nurse's19 note, something about family hopes for transfer to20 Johns Hopkins and contact is being made.

Doctor Castle admitted during his deposition that a request to transfer Mr. Cotton to Johns Hopkins was made to the nurses. There is no dispute regarding this fact. The court should deem this request admitted.

Request No. 17: Does Dr. Castle admit that Lawrence Cotton exhibited symptoms of shock at the time of or shortly before his death.

Response No. 17: Objection. This request is ambiguous as the phrase “symptoms of shock” is not defined and subject to multiple interpretations; therefore, this request is ambiguous and cannot be admitted or denied as phrased. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

This request simply asks Dr. Castle to acknowledge that Lawrence Cotton demonstrated signs of shock just before he died. The Doctor was asked a similar question during his deposition and did not claim that the term “shock” was ambiguous. In fact, Dr. Castle identified the various signs of shock during his deposition. The sworn testimony appears on page118 through 119:

Page 118-119

Q Did Mr. Cotton go into shock at any time he8 was under your care?9 MR. DAVIS: Objection to form and the10 term shock.11 You can answer.12 MR. KELLEY: I'm sorry. What was the13 answer?14 THE WITNESS: What was that?15 MR. KELLEY: I didn't hear what you said.16 THE WITNESS: I haven't really said17 anything yet.18 MR. KELLEY: I'm sorry.19 THE WITNESS: So, your hearing is good.20 Well, his blood pressure remained at the21 level of 100. I mean it was a concern. His low urine22 output was a concern.

Page 119

1 I mean I do not believe it would be defined2 right then as shock with his blood pressure. But he3 did have some changes in his vital signs.4 Q What are some of the signs of shock that a5 doctor such as yourself should be aware of with6 treating a patient such as Mr. Cotton for his injuries?7 MR. DAVIS: Objection to form and8 foundation.9 You can answer.10 THE WITNESS: Well, the blood pressure.11 BY MR. GASTON:12 Q A drop in blood pressure?13 A Right.14 Q A drop of hematocrit and hemoglobin could also indicate the onset of shock?16 MR. DAVIS: Objection to form and17 foundation.18 THE WITNESS: It is not directly related.19 It is not directly related.20 BY MR. GASTON:21 Q Could it be associated with shock?22 A Yes.

From Dr. Castle’s own sworn testimony it is apparent that he is aware of the definition of the various signs and symptoms of shock. He must either admit or deny that Lawrence Cotton demonstrated these signs just before or at the time of his death. Dr. Castle’s claim that the phrase “shock” is ambiguous and therefore the request cannot be admitted or denied is at best disingenuous. Plaintiffs request that the Doctor be ordered to admit or deny this request.

Request No. 20: Does Dr. Castle admit that he is unaware of any facts that would suggest or establish that the autopsy findings for Lawrence Cotton as contained in the autopsy report are inaccurate.

Response No. 20: Objection. The request is ambiguous as the term “inaccurate” is subject to multiple interpretations; therefore this request is ambiguous and cannot be admitted or denied as phrased. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

This request is intend to ascertain if Dr. Castle is aware of any facts that would indicate that the autopsy findings are inaccurate. Many times throughout Dr. Castle’s deposition he referred to the findings in the autopsy report and relied upon those findings when answering questions under oath. It is not an unreasonable request. Moreover, Dr. Castle was asked this identical question during his deposition at page 108 through 109:

Page 108-109

Q You can answer, Doctor.20 You looked at the autopsy report, correct?21 A I have looked at it. Yes.22 Q Do you disagree with any of the findings in

Page 109

1 the autopsy report?2 MR. DAVIS: I will object to the form and3 foundation. He certainly is not a pathologist.4 But you can answer.5 THE WITNESS: I have no reason to object to6 any of the findings on the autopsy report.7 BY MR. GASTON:

Doctor Castle testified under oath that he has no reason to object to any of the findings in the autopsy report. Why he is unable to admit that he is unaware of any facts to suggest that the autopsy findings are inaccurate is puzzling and is but yet another example of Dr. Castle ducking the question. This question is to prevent any of the doctor’s expert witnesses from coming to court and ambushing the Plaintiffs by suddenly claiming that the findings in the autopsy report are inaccurate. Moreover, Dr. Castle already submitted his expert witness designation which contained the opinions to which his expert will testify. Nowhere in his expert witness designation did any of his experts claim that any of the autopsy findings were inaccurate. Because Dr. Castle has testified under oath that he is not claiming that the autopsy finding are inaccurate and because none of his expert witnesses have made any such claim, the Plaintiffs request that this Court deem the request admitted.

Request No. 23: Does Dr. Castle admit that Lawrence Cotton suffered internal bleeding at some point in time after his fall at his home.

Response No. 23: Objection. The request is ambiguous as the term “some point in time” is subject to multiple interpretations and does not specify any site of the internal bleeding; therefore this request is ambiguous and cannot be admitted or denied as phrased. Moreover, this request seeks the admission of an ultimate issue of fact in dispute that is beyond primary evidentiary facts and a legal conclusion. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

This request asks Dr. Castle to admit that Lawrence Cotton suffered internal bleeding at some point after the fall at his home. The request is very straightforward. The objection that the request is ambiguous is groundless. Dr. Castle admitted at his deposition that Mr. Cotton developed hematomas at the time of his fall:

Page 115

Q When do you think he developed the8 hematomas that were discussed in the autopsy report,9 at what time?10 A I think he probably developed them at the11 time of the fracture.

Once again Dr. Castle answered a similar question during his deposition, did not claim that he could not comprehend the question, and did not claim that the phrasing of the question was ambiguous. His inability to admit or deny this same fact because of some perceived ambiguity is groundless. The Plaintiffs move that this request be deemed admitted.

Request No. 25: Does Dr. Castle admit that the anticoagulant medication that Mr. Cotton was taking at Montgomery General Hospital made it more difficult for Mr. Cotton’s own blood to clot?

Response No. 25: Objection. The request is ambiguous as there is no definition of “anticoagulant medication” and the phrase “made it more difficult” is subject to multiple interpretations; therefore this request is ambiguous and cannot be admitted or denied as phrased.. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

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